President Trump has invoked state secrets privilege in an effort to prevent the two psychologists who created the CIA’s torture program from testifying in court.
The lawsuit against the two architects of the Central Intelligence Agency’s torture program has dragged on for nearly two years, with the CIA attempting to limit or completely block attempts to hold the creators of the program accountable. The lawsuit faces yet another hurdle as the Trump administration has invoked “state secrets privilege” to prevent the two men accused of creating the program from testifying in court.
In October 2015, the American Civil Liberties Union filed a lawsuit against James Mitchell and John Bruce Jessen, former U.S. military psychologists who created the CIA’s torture program. The lawsuit accuses Jessen and Mitchell of operating a “joint criminal enterprise” and seeks compensatory damages of at least $75,000. The ACLU is representing Suleiman Abdullah Salim, Mohamed Ben Soud, two survivors of the CIA torture program, and Gul Rahman, who died as a result of his torture. The plaintiffs are suing Mitchell and Jessen under the Alien Tort Statute — which allows federal lawsuits for gross human rights violations — for their commission of torture; cruel, inhumane, and degrading treatment; non-consensual human experimentation; and war crimes.
James Mitchell and Bruce Jessen served in the U.S. military’s Survival, Evasion, Resistance, and Escape program (SERE), teaching U.S. troops how to resist and survive torture in the event of capture by foreign nations. SERE was supposed to help troops understand torture techniques while Jessen and Mitchell supervised their mental state. After 9/11, the psychologists were tasked with designing and developing the CIA’s detention, rendition, and interrogation operations. Using their knowledge of how to resist torture, the two reverse-engineered the SERE program to create a new program that would break the detainees’ mental state in the hopes of creating loose-lipped zombies. According to the 2015 Senate report on CIA torture, “neither psychologist had experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in terrorism, or any relevant regional, cultural, or linguistic expertise.”
Although the trial is set to begin on June 26, 2017, the Trump administration is now attempting to block testimony from top CIA officials. The New York Times reported:
Hoping to prevent the officials, including Gina Haspel, the agency’s new deputy director, from being forced to testify, the administration is using the state secrets privilege, which means the executive branch is asking the judge in the case to keep information out of court by asserting that its disclosure would damage national security.
The government rarely tries to use the extraordinary power, and this is among the first assertions of it by the Trump administration. At an earlier phase of the case in Federal District Court in Spokane, Wash., the Obama administration did not invoke the privilege — although in court filings last year, it did leave the door open to doing so at a later stage.
In October 2016, U.S. District Court Senior Judge Justin Quackenbush ruled CIA officials would be required to answer questions under oath as requested by Mitchell and Jessen. The two men requested that former high-ranking CIA officials be forced to answer questions about the program and also that the government turn over documents related to the torture program. Judge Quackenbush agreed and ordered the government to produce some of the requested documents. According to the ACLU, two of the officials who will face questioning are John Rizzo and Jose Rodriguez. Rizzo was the CIA’s head lawyer during the George W. Bush administration while Rodriguez was the head of the CIA Counterterrorism Center and then deputy director of operations. Both men played a vital role in the decision to torture detainees. In 2005, Rodriguez ordered the destruction of more than 90 videotapes that showed detainees undergoing waterboarding and other torture methods. The ACLU writes:
Rizzo was the CIA’s acting general counsel for much of the George W. Bush administration. President Bush nominated him to be confirmed in the position in 2007 but was forced to withdraw the nomination amid objections over Rizzo’s involvement in the torture program. Rizzo went along with the now-discredited Justice Department Office of Legal Counsel memos that purported to approve torture, privately acknowledging the OLC’s ‘ability to interpret over, under and around Geneva, the torture convention, and other pesky little international obligations.’ Rizzo also helped draft Bush’s still-secret order authorizing the CIA to establish secret detention facilities overseas and to interrogate detainees.
The Trump administration is also seeking to block the testimony of Gina Haspel and a still unidentified official described as “John/Jane Doe.” Haspel, who was chosen by Trump as the CIA’s deputy director, is accused of running one of the CIA’s secret detention sites in Thailand and having a direct role in the torture of the defendants. According to a recent article by John Kiriakou, a former CIA counterterrorism officer, Haspel was responsible for allowing some of the most brutal torture methods despite a lack of new information provided by the detainees. Kiriakou also accuses Haspel of directly overseeing the staff in Thailand, including Mitchell and Jessen. Kiriakou himself served 23 months in prison after pleading guilty to blowing the whistle about Bush administration waterboarding and torture of detainees.
The final decision on whether or not to invoke state secrets privilege and block the testimony rests with Federal District Court judge Justin L. Quackenbush. The state secrets privilege was used a number of times during the Bush administration to block lawsuits related to the CIA’s torture program and the NSA’s surveillance programs. After Obama took office he ordered an investigation of the cases blocked by Bush and eventually found that each use of state secrets privilege was legitimate. Still, as the Times notes, the Obama administration did make use of the privilege. “The first instance came in September 2010 in response to a lawsuit filed by the father of Anwar al-Awlaki, an American citizen and radical cleric for al-Qaeda’s Yemen branch, seeking an injunction against attempts to kill his son,” the Times wrote. Only one year later, Awlaki and his 16-year-old son would be killed via drone strike by the Obama administration.
The attempt to invoke state secrets privilege is yet another example that President Trump is not for freedom, or basic human rights. If you stand with Trump, you are standing with a tyrant. At the least, the public can take some solace in the fact that even if the state secrets privilege is allowed to go forth, the victims of torture will still be allowed to testify about their horrible experiences. The truth will be set free.